Burk v. Hand ( 1888 )

The opinion of the court was delivered by

Van Syckel, J.

The bill in this case was filed by Joseph Hand, in his lifetime, to quiet his title to a tract of unimproved land at the west end of Five-Mile Beach, in the county of Cape May.

Both parties derive their title through Silas Swain.

Silas Swain conveyed the premises in question to Jeremiah Ludlarn and fifty-one other persons, by deed dated June 4th, 1768, and recorded October 18th, 1823. The title passes through this conveyance from Silas Swain to the defendant below,, who is appellant here.

In 1772, under proceedings for the partition of lands, of which the land in dispute was an undivided part, the premises involved in this controversy were set off and allotted to the said Silas-Swain.

In 1786 the said Silas Swain conveyed the same premises toJacock Swain, who, by deed dated July 20th, 1809, and recorded September 29th of the same year, conveyed to Henry Swain and Joshua Swain.

In 1828 the title, which Henry and Joshua had, passed by deed to one David Cresse. Through these conveyances the-respondent traces the title from the said Silas Swain to the complainant, Hand. The act declaring an unrecorded deed void against a subsequent bona fide purchaser for value not having notice thereof, was passed June 7th, 1799 (Pat. 399 § 8), and applied to deeds executed on or after January 1st, 1800.

It was not necessary, therefore, to the validity of the deed to-the fifty-two grantees as against the subsequent grantee of said Silas Swain, that it should be recorded.

The deed to tl-e fifty-two was duly executed, and will support the title derived through them, unless it is rendered infirm and! ineffective by the circumstances relied upon by the respondent. The evidence in this case does not justify the inference that this deed was never delivered.

It was recorded in 1823, and a certified copy of it was produced by defendant in evidence, and, presumably, it has been in his possession aud in that of his grantors. Nor are the declarations and acts of Silas Swain, after the delivery of this deed, competent evidence to overthrow it. His relation to the partition-proceedings cannot have the effect attributed to it in the court below. There was nothing in that procedure which, so far as appears, called for the intervention of the fifty-two grantees' or any of them. They were not parties to those proceedings, and had no notice of them.

Under the act of 1789 (Elm. Dig. 379), it has been held that it was the duty of the justice, upon application for commissioners, to. ascertain that a co-tenaucy existed, and to determine the number of equal shares in which the lands were held by the original tenants in common, but it was no part of his duty to determine who owned the different shares at the time of the application. The allotment of the shares was required to be in the names of the original co-tenants, but if one was dead or had aliened his share, the heir or purchaser would be entitled to the share allotted to such original co-tenant. Kennedy v. Armstrong, Spen. 693.

So I think the share set off to Silas Swain, under the writ of ■partition, in 1772, inured to the benefit of the fifty-two grantees, without any active interposition on their part. There is nothing in those proceedings which bars their right. The description of the premises in their, deed is precisely that of the subsequent •allotment to Silas, their grantor. The identity of the part previously conveyed to them by Silas, and the part set off to him, can be accounted for only on the assumption that it was so arranged by his procurement, in order to perfect said- conveyance.

The only remaining circumstance relied upon by the respond•ent, is the conveyance from Henry and Joshua Swain to David Cresse, which refers to the partition proceedings. Assuming that he is the same David Cresse who is named as one of the fifty-two .grantees, no inference can legally be drawn from said purchase by him, nor from his acts to defeat or impair the rights of his ■co-grantees. He may have desired to fortify his own previously-acquired title to the undivided fifty-second part, or he may have hoped to gain some advantage to himself by purchasing an ■adverse title to the whole tract.

The appellant has a title which he has a right to liav-e tried at law.

The decree below, should be reversed, with costs.

Decree unanimously reversed.